ASA RAM Vs. CENTRAL GOVERNMENT

JUDGEMENT

(1.) BESIDES raisins the question of the vires of Section 20-A of the Displaced persons (Compensation and Rehabilitation) Act (44 of 1954) (hereinafter called the rehabilitation Act), other important questions of law have been raised by Mr. S. P. Goyal, the learned counsel for Asa Ram and two others, petitioners in this petition under Articles 226 and 227 of the Constitution. In order to appreciate those points, it is necessary to set out in some detail the relevant facts leading to the filing of this petition. Urban agricultural land measuring 13 Bighas and 18 Biswas comprised in various khasra numbers detailed in paragraph 1 of the petition situate at Karnal was on lease with Asa Ram petitioner and his brothers since 1943-44. The lessors were muslims who migrated to Pakistan at the time of the partition of the country under the Indian Independence Act. The rights of ownership in the land in question were, therefore, declared to be evacuee property. On the coming into force of the rehabilitation Act and on the issue of a notification under Section 12 thereof, this land was acquired by the Central Government, and formed a part of the compensation pool. Since the land had not been allotted by the Rehabilitation department to any person, it formed part of the package deal under which all unallotted urban agricultural land was transferred to the erstwhile composite Stale of Punjab. As a result of the said package deal, the property passed out of the compensation pool. The Revenue Officer of Karnal (Tahsildar, Sales) put this property to auction on February 21, 1964. Part of the land described in paragraph 1 of the writ petition was purchased at the auction for Rs. 4. 500/- by petitioner no. 3, and the rest of the land in dispute was purchased at the same auction by petitioner No. 2 for Rs. 9,000/ -. The sale was subject to confirmation by a higher revenue authority designated as the Settlement Officer (Sales), Nilokheri, district karnal. Though the bids of petitioners Nos. 2 and 3 referred to above were accepted by the tahsildar, the same had not yet been confirmed before the complication hereinafter mentioned was created. There is another tract of agricultural land which, according to the respondents, has recently become urban. That land, measuring seven Bighas seven Biswas bearing khasra No. 1280, is situate at Panipat. According to the petitioners this was shamlat land of Taraf Insar, but was in the exclusive possession of respondents nos. 4 to 7, as they were also proprietors in the said Tarif. Annexure 'a' to the writ petition is a copy of the Jamabandi for the year 1946-47, in respect of that land. Respondents Nos. 4 to 7, who are K. G. Saiyidan, and Khawaia Ashar Abhas, sons of K. G. Saglani, and Mst. Mukhtiar Fatima and Mst. Musdaq Fatima, daughters of the above-mentioned K. G. Saglani, were treated as evacuees by the Custodian in 1947. It is admitted by both the parties that in fact they never left India, and never went to Pakistan. Be that as it may, the above-mentioned property of respondents Nos. 4 to 7 was acquired under Section 12 of the Rehabilitation Act, and initially allotted and ultimately sold out absolutely to one Chaudhary Partap singh. In the meantime, respondents Nos. 4 to 7 had filed a petition for restoration of the Panipat land with the Central Government. Their application under Section 16 of the Administration of Evacuee Property Act (31 of 1950) was allowed, and the certificate stated that the Panipat property which had vested in the Custodian, and to which respondents 4 to 7 would have been entitled if the evacuee Act was not in force shall be restored to them. A copy of the above mentioned certificate, dated June 21, 1954, is Annexure 'b' to the writ petition. The certificate was granted subject to the condition that the allottees of urban immovable properties were not to be evicted under any law for the time being in force relating to the control of rent of buildings and eviction of tenants therefrom. Before the Panipat land could be actually restored to respondents 4 to 7, permanent rights therein had been transferred to Chaudhary Partap Singh. When respondents 4 to 7 made an application for the restoration of possession by cancelling the permanent rights of Chaudhary Partap Singh, this application was allowed by the Chief Settlement Commissioner and the permanent rights of chaudhary Partap Singh in the Panipat land were cancelled, and possession of that land was directed to be restored to respondents 4 to 7. Chaudhary Partap Singh filed a civil suit against the order of the Chief Settlement Commissioner which was dismissed by the trial Court. The decree of the Subordinate Judge was upheld in appeal, and was also upheld ultimately by this Court on April 7, 1961, while dismissing Chaudhary Partap Singh's Regular Second Appeal No. 1263 of 1960. In spite of having succeeded in the litigation with Chaudhary Partap Singh, respondents Nos. 4 to 7 appear to have arrived at some arrangement with him on account of which they did not avail of the order of restoration and did not reap the benefit of the decree of the Civil Court in their favour, but applied to the Central government under Section 20-A of the Rehabilitation Act for allotment of alternative land, on January 6, 1962. It may be remembered that whereas the karnal land in dispute was urban agricultural land from the very beginning, the panipat land was not so, but was declared to be so only on account of the same having come within the municipal area of Panipat. In the circumstances which have not been brought to light by the respondents and on the basis of some alleged order, a copy of which has neither been supplied to the petitioners nor produced here, the Government seems to have readily agreed to the suggestion of respondents 4 to 7. In spite of the fact that all the duties of the Government under section 16 of the Evacuee Act had ostensibly come to an end, it lost no time in obliging respondents 4 to 7 and directing that the land in dispute on which petitioner No. 1 was originally a tenant, and for which petitioners Nos. 2 and 3 had given the highest bids, should be restored to respondents 4 to 7 in place of the original land for which certificate under Section 16 had already been granted. The petitioners have produced as Annexure 'e' to this writ petition a copy of letter, dated March 28, 1963, from the Under Secretary, Ministry of Housing, Works and rehabilitation, Govt. of India, New Delhi, to the Custodian of Evacuee Property, punjab, Jullundur. The Communication refers to some previous correspondence and then states as follows:

(2.) PETITIONER No. 3 having come to know of what was happening, made two applications for a copy of the order under which the land in dispute was sought to be handed over to respondents 4 to 7. In reply to his application, dated May 13, 1965, addressed to the Managing Officer (Urban Lands) Jullundur, he was informed in the letter's memorandum, dated June 1, 1965 (copy Annexure 'f'), that the restoration orders had been passed by the Central Government under section 16 of the Evacuee Act, and that, therefore, the petitioner was requested to approach the proper Quarters for the purpose of supply of the copy of the order of restoration. In reply to the application, dated May 11, 1965, which petitioner No. 3 sent to the Chief Settlement Commissioner, he was informed in the Chief settlement Commissioner's letter, dated June 18, 1965 (Annexure 'g'), that the petitioner was not an Interested party, being neither the restoree nor a tenant, and that, therefore, his request for the supply of the copy of the order of restoration could not be acceded to. When the petitioners were threatened with being dispossessed of their holdings without even being given a copy of the order under which the action was sought to be taken against them, they were driven to this Court as no other remedy appeared to be available to them. Their writ petition was admitted by the Motion Bench (Mehar Singh, J. , as my Lord the Chief Justice then was, and R. P. Khosla, J.) on July 27, 1965. By order, dated August 23, 1965, passed on petitioners' Civil Miscellaneous 3159 of 1965, the dispossession of the petitioners from the land in dispute was stayed by Gurdev Singh, J. The ad interim stay order was made absolute by the order of B. R. Tuli, J. , dated March 10, 1969.

(3.) NEITHER the State of Punjab and the State of Haryana nor respondents 4 to 7 have put in appearance in this case. None of them has either filed any return or appeared to contest the petition. An affidavit of Shri Karta Krishan, Regional settlement Commissioner, Jullundur, dated May 15, 1968, has been filed as a return to the rule issued to respondent No. 2 i. e. , the Regional Settlement commissioner, Jullundur. Besides taking up a preliminary objection to the effect that the petitioners cannot seek any relief in this case as they have no legal right to maintain the petition, it has been admitted in the return that the Karnal property in dispute had been declared as evacuee property and had been acquired by the Central Government and had subsequently been transferred by the Central government to the State Government in a package deal. The auction sales in favour of the petitioners Nos. 2 and 3 held on February 21, 1964. by the Tahsildar, karnal, have also been admitted. It has, however, been stated that the land was subsequently withdrawn from the package deal by the Regional Settlement commissioner on January 18, 1965, in order to satisfy the claim of respondents nos. 4 to 7, who were ordered to be restored the land which had originally been held by them. Respondent No. 2 has then stated in his return that the Additional settlement Officer (Sales), Nilokheri, had stayed the confirmation of the sale in favour of the petitioners by his order, dated March 18. 1964, and therefore, the transaction of sale of the disputed property in favour of the petitioners was not finalised, and they had been told to apply for the refund of the amount paid by them. The stand taken up by respondent No. 2 regarding respondents 4 to 7 being or not being evacuees is contradictory. In paragraph 4 of the written statement it is averred that respondents 4 to 7 could not personally occupy or supervise their property in the State of Punjab during the disturbances at the time of the partition of the country, and as such they were treated as evacuees in view of the provisions of Section 2 (b) (ii) of the East Punjab Evacuee (Administration of property) Act. 1947. On that basis it has been claimed that the property of respondents 4 to 7 was rightly treated as evacuee property in the first instance and correctly allotted to Chaudhary Partap Singh. It is then stated that the subsequent enquiries revealed that respondents 4 to 7 had not migrated to pakistan, and, therefore, the property was rightly restored to them by the Central government. As already stated, the order of restoration passed by the Central government has not been produced before me. Nor has any order denotifying the property of respondents Nos. 4 to 7 as evacuee property been produced in this case. Action for the transfer of the disputed area as alternative property is stated to have been taken In pursuance of the letter, dated March 28, 1963, received by the Custodian, Evacuee Property, Punjab, from the Ministry; of Rehabilitation, The reason why the land of the petitioners is said to have been given to respondents 4 to 7 is stated In paragraph 14 of the return to be that the Panipat land of respondents 4 to 7 which had been directed to be restored to them was not available, and it was therefore, decided to transfer the disputed Karnal land to them as an alternative area. There is no material on the record to show why the panipat land was not available.